Line to take

Where functions are defined in the relevant statutory bar legislation, then that statutory definition should be followed irrespective of whether it is a wide or narrow definition. The Commissioner accepts that this may prevent the disclosure of a large amount of information where functions are defined widely.

However, where the relevant function is not defined in the legislation, the Commissioner would expect the public authority to set out which function is being relied upon and then consider its application in light of Lord Templeman’s comments in Hazell v Hammersmith & Fulham London Borough Council (see below).

Further Information

Section 44(1) states:

Information is exempt information if its disclosure (otherwise than under this Act) by the public authority holding it-

* is prohibited by or under any enactment

* is incompatible with any Community obligation, or

* would constitute or be punishable as contempt of court

A number of statutory bars cited in connection with s44 refer to the term function and thus it is important to understand what the term means.

Some enactments define functions, for example, section 5(1) of the Commissioners for Revenue and Customs Act 2005 states that the Commissioners shall be responsible for-

(a) the collection and management of revenue for which the Commissioners of Inland Revenue were responsible before the commencement of this section,

(b) the collection and management of revenue for which the Commissioners of Customs and Excise were responsible before the commencement of this section, and

(c) the payment and management of tax credits for which the Commissioners of Inland Revenue were responsible before the commencement of this section

...

(4) In this Act "revenue" includes taxes, duties and national insurance contributions

Section 9 of the CRCA also allows the Commissioners to do anything which they think is necessary, expedient, incidental or conducive to the exercise of their functions and section 51 confirms that the term function means "...any power or duty (including a power or duty that is ancillary to another power or duty)". The CRCA therefore provides for a wide interpretation of the term functions and this could potentially mean that a lot of information is caught by the exemption.

The Commissioner has also considered case-law on the subject and looked at the House of Lords case of Hazell v Hammersmith & Fulham London Borough Council which questioned whether "swap transactions" facilitated, were conducive to or incidental to the Councils acknowledged function of borrowing under s111 of the Local Government Act 1972. At page 23, Lord Templeman said:

...in section 111 the word "functions" embraces all the duties and powers of a local authority; the sum total of the activities Parliament has entrusted to it. Those activities are its functions...

This provides for a wide interpretation of the term "functions" to include an authority’s powers and duties and although Lord Templeman was speaking with specific reference to s111 LGA 1972, the Commissioner considers that this interpretation can be applied to other legislation which refers to functions such as s31(1)(g) FOIA. However, the Commissioner considers that this wide interpretation has been limited by the phrase — "the sum total of the activities Parliament has entrusted to it".

Firstly, Lord Templeman has referred to "activities". The Commissioner considers that this refers to a positive duty on a public authority rather than an obligation imposed on all public authorities, for example, the Health and Safety Executive's activities involve promoting health and safety, investigating accidents etc, Therefore material regarding these activities would constitute information about its functions. In contrast, the HSE also has obligations, as do other public authorities, to manage its human resources but this could not be said to be its (main) activity and therefore one of its functions.

Secondly, Lord Templeman referred to the sum total of the activities that Parliament had
entrusted to "it". This goes to suggest that the relevant functions are only those which are specifically entrusted to that particular authority rather than general activities entrusted to all authorities i.e. HMRC is specifically entrusted with revenue collection and enforcement activities but is not specifically entrusted with managing, for example, its human resources.

The Commissioner's Approach

In cases where the functions are expressly set out and defined in the relevant legislation then the definition within the legislation should be followed, irrespective of whether this is a wide or narrow interpretation. The Commissioner accepts that this may prevent the disclosure of a large amount of information where functions are defined widely. for example, the CRCA.

However, where the relevant function is not defined in the legislation, the Commissioner would expect the public authority to set out which function is being relied upon and then consider its application in light of Lord Templeman’s comments.

Thus, the Commissioner would expect the public authority to provide the following (or if they fail to provide, should be prompted to):

explain the nature of the relevant function

point to the relevant legislation imposing this function upon the public authority but if this is not possible, to explain how it has been specifically tasked with the function e.g. a government department may derive its legal authority to carry out certain functions from the Crown rather than statute.

Note (1)

The term "function" is often used as a gateway to disclosure and thus a wide definition of the term would suggest that a lot of information could be disclosed under this provision, for example, the Financial Services and Markets Act 2000 says as follows:

(3)(1) A disclosure of confidential information is permitted when it is made to any person—

(a) by the Authority or an Authority worker for the purpose of enabling or assisting the person making the disclosure to discharge any public functions of the Authority or (if different) of the Authority worker

(b) by the Secretary of State or a Secretary of State worker for the purpose of enabling or assisting the person making the disclosure to discharge any public functions of the Secretary of State or (if different) of the Secretary of State worker.

(c) by the Treasury for the purpose of enabling or assisting the Treasury to discharge any of their public functions.

(349)(1) Section 348 does not prevent a disclosure of confidential information which is—

(a) made for the purpose of facilitating the carrying out of a public function: and

(5) “Public functions” includes—

(a) Functions conferred by or in accordance with any provision contained in any enactment or subordinate legislation;

(b) functions conferred by or in accordance with any provision contained in the Community Treaties or any Community instrument;

(c) similar functions conferred on persons by or under provisions having effect as part of the law of a country or territory outside the United Kingdom;

However, as these gateways usually operate at the discretion of the public authority, the Commissioner would not seek to question the public authority's application of their discretion unless this is specifically raised by the complainant or where the question is strikingly apparent on the circumstances of the case. The Commissioner would then consider whether the application of the discretion was unreasonable based on the Wednesbury unreasonableness principles. See for example FS50212106 at para 14 which says that:

"...the Commissioner reads regulation 3(1)(a) as being permissive rather than mandatory. It provides the FSA with a "gateway" that permits the disclosure of confidential information where that will enable or assist the FSA in discharging any of its public functions. However nothing in regulation 3(1)(a) requires the FSA to disclose confidential information on every occasion that such disclosure might enable or assist the FSA to discharge its public functions"

Note (2)

In some cases, complainants will argue that that complying with an FOIA request meets one of the relevant gateways and thus that the statutory bar does not apply. Alternatively, some public authorities try to argue that the exemption is engaged because it is one of their functions to respond to FOI requests. On this point. the Commissioner will follow the Tribunals approach in Slann v Financial Services Authority where it was said at paragraph 38 -

"...The Tribunal respectfully agrees with the FSA when it contends that section 349(5)(a) with its reference to public function is referring to and is directed to functions and powers conferred on the FSA by statute or by statutory instrument other than the FSMA and not legislation such as the 2000 Act to which other persons including the FSA are or might be subject. Even if that view were wrong, section 44 on its face makes it clear beyond doubt that disclosure under the 2000 Act is to be ignored for this purpose by virtue of the dispensing words otherwise than under this Act".